Monthly Archives: June 2012

By Jaco van den Brink. J. van den Brink (LLM) is attending a Master’s in Political Philosophy at Leiden University and meanwhile preparing a PhD research on religious freedom.

A couple of quite interesting judgments were issued by the ECtHR, the last two years, concerning the internal autonomy of churches. The most recent judgment was in the case Fernandez-Martinez vs. Spain (15th May 2012). The applicant was a Catholic priest, who was married and was therefore discharged by the Church authorities of the teaching activities he performed before. The question was at stake: is it primarily the state’s task to protect the employee’s position and free private-life choices, or to refrain from interfering in the appointment policies of the Church? The Court didn’t find a violation. According to Stijn Smet on http://strasbourgobservers.com/2012/05/24/fernandez-martinez-v-spain-towards-a-ministerial-exception-in-europe/ , the Court sided with the Spanish Constitutional Court in deciding that the state was not allowed to engage in this religiously inspired internal policy of the Church, without really engaging in a balancing of interests by testing the reasonability of the Church’s decision. The Court itself however, seems to suggest that it intends to perform such a test.In January of this year, the Court seemed to take quite another approach in Sindicatul "Pãstorul cel Bun" v. Romania. In this case the Court ruled that the Romanian Orthodox Church could not refuse legal acknowledgment to a kind of labor union of a certain group of clerics and lay members. The Church’s freedom of religion and association apparently did not preclude its duty to grant full associational freedom within its sphere, to all its members.

The three ‘German cases’ (September 2010, Schüth vs. Germany and Obst vs. Germany; and February 2011 Siebenhaar vs. Germany), were judged in a way that seems to be somewhere in between the two mentioned above. These cases were quite similar to Fernandez-Martinez vs. Spain, but here the Court undoubtedly engaged in a balancing of interests and judged (albeit marginally) the reasonability of the decision by the churches to end the employment contract.

These cases are often compared with the US-Supreme Court judgment in the case Hosanna-Tabor, in which case a religious teacher was dismissed by a Lutheran church. The Supreme Court -unanimously -did nothing to evaluate this church’s decision, but merely elaborated on the ‘ministerial exception’, according to the Court implicit in the Religion Clauses of the First Amendment. This principle contains that religious institutions are more or less free to make their own choices in the appointment of ‘ministers’, regardless of the employment regulation. The state therefore doesn’t have a say in such church’s internal affairs, as the Supreme Court concludes. It seems to me that this judgment goes even further in recognizing church autonomy than the ECtHR in Fernandez-Martinez vs. Spain.

To conclude, I’ll put some reasons why I’m inclined to think that the Hosanna-Tabor-type of reasoning is the most sound:

Much can be said in favour of the principle that the legitimacy-area of the state stops where the area of church authority begins. Churches and states both fulfil important roles in people’s lives, but their roles are very different and irreducable to each other. (By the way, such a principle would also apply to religious institutions in general, but maybe also to other civil society institutions, and perhaps even to families).

If the state’s competences are to be restricted this way, then indeed there is even no room for a balancing of interests in a case like Hosanna-Tabor or Fernandez-Martinez. As long as the church doesn’t interfere in the state’s prerogatives of protecting citizens against violence or other clear cases of exploitation and abuse, the church’s internal business are to be left up to the church’s proper authorities. A court which evaluates a church’s appointment decision, holds implicitly that the state has full competence to direct everything in society and is free to decide how much autonomy it is willing to grant to churches.

This becomes still more important when we take the religious character of churches into account, since it is not up to the state to evaluate the content of religious ethics.

We cannot strive towards a protection of individual autonomy, regardless what kind of institution is involved, since that would be to deny the special, indispensable role that such institutions (as collective institutions) play in human life and in society. This role is not reducable to individual choice only, and neither to the goods which the state provides.

I will be attending the conference on ‘Religion and Civil Society; The Changing Faces of "Religion" and "Secularity"’ this week, organized by the Institute for Culture and Society (ICS) of the University of Navarra (Pamplona, Spain), at Harvard Law School. For the conference, which was announced earlier on this blog, I co-authored a paper with Jaco van den Brink on ‘The State, Civil Society and Religious Freedom’. The final program appears below:

7th June

PLENARY SESSIONS AND DISCUSSION

9:00

"The changing faces of religion and secularism"Mary Ann GlendonLearned Hand Professor of Law at Harvard University Law School, Cambridge.

10:00

"Parenthood in God and civil society"Rafael AlviraProfessor of History of Philosophy at ICS University of Navarra

11:00

"Religious civilization and civil religion in a multicultural world"Carmelo VignaProfessor of Moral Philosophy at Università Ca Foscari of Venice

Crosses and Culture: State-Sponsored Religious Displays in the United States and EuropeMark L. MovsesianFrederick A. Whitney Professor and Director at the Center for Law and Religion, St. John’s University, New York.

The State, Civil Society and Religious FreedomHans-Martien ten NapelAssistant Professor of Constitutional and Administrative Law at Leiden University.

A Cookbook of Ways to Dissolve Religious Associations through LawIain T. BensonSenior Associate Counsel of Miller Thomson LLP in Canada. University of the Free State of South Africa.

Freedom of Religion and Belief: Is there a Role for the European External Action Service?Pasquale AnnicchinoResearch Fellow at Robert Schuman Centre for Advanced Studies, European University Institute, San Domenico di Fiesole.

Forum Internum and Forum Externum and the Negotiation of the Public-Private Divide in Canon Law and Public International Law with a Particular Reference to the Jurisprudence of the European Court of Human RightsPeter PetkoffResearch Fellow. Director of Law, Religion and International Relations Programme. Regent’s Park College, Oxford. Brunel University Law School, West London.

Religious freedom and the cultural dimension of religionFrancisca Pérez MadridProfessor of Law at University of Barcelona.

16:00

Workshop IIMedieval Political Theology: Theory & Practice.Chair: Jaume Aurell. Dean of the School of Philosophy and Social Studies, University of Navarra

How did "Political Theology" exist in the Middle Ages?Montserrat HerreroAssociate Professor of Political Philosophy at ICS, University of Navarra.

Ernst H. Kantorowicz and Gabriel Naudé: from "Mysteries of State" to "Coups d’État"Antonio BentoAssociate Professor of Political Philosophy at University of Beira Interior.

Places of Power: the City and the Court in Late Medieval IberiaRita Costa GomesAssociate Professor of Medieval History at Towson University

Just War and Criticism of Crusade in Western Medieval SocietyMartin AurellProfessor of Medieval History at University of Poitiers. Institut Universitaire de France

King Peter of Aragon Self-coronation (1336) and its Historical, Liturgical and Iconographical RepresentationsJaume AurellAssociate Professor of Medieval History at University of Navarra

The iconology of breaking medieval seal matricesAlfons PuigarnauAssociate Professor of Theory of Art at International University of Catalunya

8th June

PLENARY SESSIONS III AND DISCUSSION

9:00

Defending Civil Society: Religious Advocacy in American National PoliticsAllen HertzkePresidential Professor of Political Science at University of Oklahoma

10:00

Why Religion and ‘the Secular’ cannot be SeparatedJean Bethke ElstainLaura Spelman Rockefeller Professor of Social and Political Ethics at the Divinity School. Department of Political Science and the Committee on International Relations at the University of Chicago

11:00

The Theologico-Political Problem TodayRussell HittingerWilliam K. Warren Professor of Catholic Studies. Research Professor of Law at University of Tulsa

12:30 Lunch

WORKSHOPS

14:00

Workshop IIILiberalism, Capitalism and ReligionChair: Raquel Lázaro, University of Navarra

David Hume and True ReligionGordon GrahamHenry Luce III Professor of Philosophy and the Arts at Princeton Theological Seminary

Living toguther differently: beyond the liberal synthesisAdam SeligmanProfessor of Religion at Boston University. Research Associate at Institute for Study of Economic Culture, Boston University.

The role of Religion according Mandeville and HutchesonJulio SeoaneAssociate Professor of Philosophy at University of Alcalá

The Ethical Gap in Modern Ideals of Citizenship: A Diagnosis and a ProposalDavid ThunderVisiting Assistant Professor at Villanova University

An analysis of the history of Western Man: Personhood, Individuality & TransformationRobert de SimoneResearch Fellow at ICS at University of Navarra-New York

God and Religion in a commercial society, according to Adam SmithRaquel LázaroAssociate Professor of Modern Philosophy at University of Navarra

16:30

Workshop IVThe Media and the Process of Secularization of SocietyChair: Mercedes Montero and Mónica Codina, University of Navarra

Freedom of speech as naturalized religious freedom: historical antecedents and views from social pragmatismMariano NavarroChief of Communication Research Division at Panamericana University, México D. F.

Free speech and the rationality of public communication in a changing eraMónica CodinaAssociate Professor of Ethics and Communication at University of Navarra

About my blog

I am both a lawyer and political scientist by training. From early on I have been fascinated by crossing (sub)disciplinary boundaries. Thus, while I was still teaching at the Department of Political Science, I collaborated with constitutional lawyers in the field of Dutch government and politics. I also spent a sabbatical at the Center for European Studies at Harvard University, USA. After my transfer to the Law Faculty, I developed a course in Comparative Constitutional Law, thereby once again attempting to bridge the gap with constitutional politics. I also co-directed book projects on political parties and public law (2014) and the separation of powers (2015) respectively.
Recently, I have been able to capitalize on the fact that I thrive in interdisciplinary and international settings even further. In 2013 a research proposal I co-authored with historian James Kennedy as principal applicant, entitled ‘Religion Renegotiated: Faith-Based Organizations and the State in the Netherlands since the 1960s', was granted a major subsidy by the Dutch Association for Scientific Research (NWO). In 2014 I was awarded a Research Fellowship in Legal Studies at the Center of Theological Inquiry (CTI) at Princeton University, USA, which enabled me to be in full-time residence at CTI for the academic year 2014-2015. Since 2015, I am a member of the editorial board of the Tijdschrift voor Religie, Recht en Beleid (Journal for Religion, Law and Policy).
Throughout my professional career my passion has been the question of how constitutional democracies can be designed in order to meet the demands of religiously and otherwise divided societies. My PhD thesis already dealt with the origins of the Dutch Christian Democratic party, whose predecessors were major architects of the pluriform democracy which has characterized the Netherlands during most of the 20th century. A new book, entitled 'Constitutionalism, Democracy and Religious Freedom. To Be Fully Human' (Routledge), is now published.

‘The International Center for Law and Religion Studies (ICLRS) is honored to announce the distinguished keynote speaker for the 24th Annual International Law and Religion Symposium — “Religion and Religious Freedom in a Changing World” — to be held 1-4 … Continue reading →

Topics include: New Perspectives on Montesquieu The Crisis of Constitutional Democracy American Public Philosophy in the Age of Trump On the Compatibility of Natural Law and Natural Rights Author Meets Critics: Alexander Tsesis’s “Constitutional Ethos” Liberalism in Crisis Challenges to … Continue reading →

‘The central question political scientist Mark R. Royce addresses in his book, The Political Theology of European Integration: Comparing the Influence of Religious Histories on European Policies, is whether the process of European integration as it has developed since the … Continue reading →

Just two out of many panels, which made this yet another great conference. Proud to have been part of it for the fourth year in a row, after Florence, New York City and Berlin. Ernst-Wolfgang Böckenförde’s Constitutional Thought in Comparative Perspective … Continue reading →

Looking forward to presenting next week on ‘The European Court of Human Rights’ “constitutional morality” in the religious domain’. The paper forms part of a panel on ‘Judicialisation of Human Rights Law and Policy: A Vehicle for Effective Protection of Fundamental Rights?’ The … Continue reading →

Just five of the speakers, making this such a very worthwhile event to attend: – Russell Moore, President of the Ethics & Religious Liberty Commission of the Southern Baptist Convention – Daniel Mark, Chairman of the United States Commission on … Continue reading →

‘Twelve researchers of our Law School have been awarded an ILS seed money grant. This grant enables researchers to create space for preparing a grant proposal for NWO, ERC or otherwise. Given the impressive quality of the twelve applications received … Continue reading →

Source: CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=240138 This week I will be attending the 2017 Acton University Conference, at DeVos Place, Grand Rapids, Michigan. Acton University ‘is a unique, four-day exploration of the intellectual foundations of a free society. Guided by a … Continue reading →